V. MOORE might have been paid before; and such an acknow- HENDERSON ledgment, upon receipt of a sum smaller than the amount of the condition of the bond, was good evidence upon the plea of payment. Judgment affirmed with costs. COOKE AND OTHERS v. WOODROW ERROR to the circuit court of the distri of In an action of Columbia, in an action of trover brought by the rover, if the plaintiffs in error for sundry household goods. go on judgment be. low be in favour of the original defendant, the value supreme court sum claimed as If inquiry be made at the A bill of exceptions stated that the plaintiffs on the trial produced in evidence to support their title of the matter in dispute upto the goods, a certain paper writing signed by one on the writ of John Withers, to which one John Pierson had sub- error in the scribed his name as a witness, and offered parol of the United evidence to prove that the subscribing witness had States, is the upwards of a year ago left the district of Columbia, damages in the and that before he left the said district he declared declaration. that he should go to the northward, that is to say, must be used Due diligence to Philadelphia or New-York, and said he had a to obtain the wife in New-York. That the said subscribing wit- testimony, of the subscribing ness went from the said district to Norfolk, and that witness. when he got there he declared that he should further to the south, but where was not known, and that he has not been heard of by the witness for the the witness was last heard of, last twelve months. It appeared that a subpoena had and he cannot beer issued in this case, for the said subscribing be found, eviwitness, directed to the marshal of the district of hand writing Columbia, but he could not be.found in the said dis- may be adiit. trict by the said marshal. The plaintiff then offer- ted. ed to prove the hand-writing of the subscribing witness and of the said John Withers to the said writing, but the court refused to permit the plaintiffs to produce evidence of the hand-writing of the said subscribing witness, and refused to permit the plaintiffs to prove the hand-writing of the said John Withers, otherwise than by the testimony of the said place where dence of his Сбок V. WOODROW. subscribing witness; to which refusal the plaintiffs excepted." C. Simms, for the plaintiffs in error, suggested that this court must be satisfied by evidence (other than the declaration) that the sum in demand exceeded 100 dollars, exclusive of costs; and cited the rule made in the case of Course v. Stead's Executors, ante, vol. 1. p. 17. But MARSHALL, Ch. J. said, that that rule applied only to cases where the property itself (and not damages) was the matter in dispute such as actions of detinue, &c. If the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dispute; but where the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value. The point arising upon the bill of exceptions was submitted without argument. MARSHALL, Ch. J. after stating the case as it appeared in the bill of exceptions, observed. That the court had some difficulty upon the point. The general rule of evidence is, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party. In consequence of that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the next best evidence is proof of his hand-writing. In the present case it does not appear to the court that the testimony of the subscribing witness could not have been obtained if proper diligence had been used for that purpose. It does not appear that the witness had ever left Norfolk. It is not stated that any inquiry concerning him had been made there. If such inquiry had been made, and he could not be found, evidence of his hand-writing might have been permitted. But as the case appears in the bill of exceptions, the court below has not erred. Judgment affirmed with costs. COOKE V. WOODROW. MANDEVILLE AND JAMESSON v. WILSON. are within the of ERROR to the circuit court of the district of Amendments Columbia, sitting at Alexandria, în an action of as- discretion sumpsit brought by the defendant in error for goods the court besold and delivered, and for the hire of a slave. The defendants below pleaded non assumpserunt, and the statute of limitations. low. Quære, whether the court ought to permit amend ments after judgment upon demurrer. In the statute of limita chants' ac To the latter plea the plaintiff replied, "that the said money in the several promises and undertakings tions, the exaforesaid above mentioned in the declaration, at the ception time of the making of the promises and underta- Tour of mer. kings aforesaid, became due and payable on an ac- counts, applies count current of trade and merchandise had between as well to acthe said plaintiff and the said defendants as merchants, sumpsit, as to and wholly concerned the trade of merchandise, to actions of acwit, at Alexandria aforesaid, in the county aforesaid, It extends to and this he is ready to verify." tions of us Count. all accounts current which concern the An account To which the defendants rejoined, "that in the trade of mermonth of January, 1799, the partnership of Mande-chandise. ville and Jamesson was dissolved, and public no- closed, by the tice given of such dissolution, of which the said cessation of dealings beplaintiff had a knowledge at the time, and that at tween the parthe time of the said dissolution of the partnership ties, is not n aforesaid, all accounts between the said plaintiff and the said Mandeville and Jamesson ceased, and cessary that since which time no accounts have existed, or been items should continued, between the plaintiff and the said defend- have been ants, which the said defendants are ready to verify." in the five » charged with The plaintiff surrejoined, "that the goods, wares account stated. It is not ne any of the years, nor that The declaration MANDI- WILSON. andmerchandise in the said declaration mentioned, were by the said plaintiff sold and delivered to the said defendants, and the said negro in the said declaration mentioned was hired by the plaintiff to the should aver defendants before the month of January, in the year be due upon 1799, the time when the said defendants in their an open ac- said rejoinder state their said copartnership was dismerchants. solved, and this the plaintiff is ready to verifv." the money to count between To this surrejoinder the defendants demurred, and assigned for cause of demurrer, that "the surrejoinder is a departure in this, that it is no answer to the defendants' rejoinder." Upon joinder in demurrer, the court below gave judgment for the plaintiff. A bill of exceptions stated, that on the day on which the cause was called for trial, the court pérmitted the plaintiff to withdraw his general replication to the plea of the statute of limitations, and to file the above special replication. And that after the court had given judgment upon the demurrer, it refused to permit the defendants to withdraw their demurrer, and their rejoinder, and to file a general re joinder to the plaintiff's replication. Loungs, for the plaintiffs in error. 1. The plaintiff below ought not to have been permitted to withdraw his general replication, and to reply specially. LIVINGSTON, J. Is that a proper subject for a writ of error? . It creates Youngs. There are other points; but I suppose it is good ground for a writ of error. delay; and although amendments may be matter of discretion with the court, yet the court is bound to exercise its discretion soundly and legally; it is a discretion which this court will control. 2. The exception in the statute of limitations in' far our of merchants' accounts, applies only to ac counts current, where there have been mutual dealings, and where some of the items are more and some less than five years' standing. In such cases the last item shall draw all the rest out of the statute. But if all dealings between the parties have ceased for more than five years . next before the commencement of the suit, the whole account is barred. An account which has ceased to run is an account closed. An account closed is an account stated; and it is expressly decided that an account stated is not excepted from the general operation of the statute. Besides, the exception of the statute is only in favour of actions of account, and not actions of assumpsit. 2 Ves. 400. Welford v. Liddel. 4 Mod. 105. Chievly v. Bond. 2 Saund. 124. Webber v. Tivill.* The replication is repugnant to the declaration ; for money due for the hire of a negro cannot be money due on an account current of trade and merchandise." 66 The declaration ought to have stated the money to be due upon such an account. 3. The court below ought to have permitted the defendant to withdraw his demurrer and his rejoinder, and rejoin generally to the replication. E. J. Lee, contra, having cited 3 Wooddeson, 83. 85. as to the principal question, was stopped by the court, as to the error alleged in the permission given by the court below to the plaintiff to amend before trial, and the refusal to allow the defendants after judgment upon the demurrer to withdraw it and take issue on the fact. MARSHALL, Ch. J. observed that the permitting amendments is a matter o fdiscretion. He did not mean to say that a court may in all cases permit or But see Serjeant Williams's note to that case in his edition of Saunders's Reports. The statute of Virginia, so far as it relates to the questions in this case, is precisely like the British statute of 21 Jac. c. 16. s. 3. Vol. V MANDE VILLE V WILSON |